Dependants must be provided for under the law

When someone makes a Will, they decide who gets their property after death. However, if their Will does not provide for dependants it may be challenged. The law ensures that an individual who provided support to dependants while alive, must continue to provide adequate and proper support after death.

In Ontario, several laws establish financial responsibilities to spouses, minor children and parents, including the Family Law Act, the Criminal Code, and the Succession Law Reform Act (SLRA). Responsibilities to dependants do not end upon death, regardless of what is stated in a Will.

What is a dependant’s relief claim?

A dependant’s relief claim is a claim for support from the deceased’s estate if the financial obligations to dependants are not included in a Will, or someone dies without a Will (intestate). Under the SLRA the deceased (or their estate) may be ordered to pay adequate and proper support to spouses, parents and children. Payments to dependants take precedence and must be paid first, before payments are made to others receiving bequests under the Will.

Who can make a dependant’s relief claim?

A dependant’s relief claim may be made by the dependant or the dependant’s parent. To qualify as a dependant, an individual must be:

• a spouse, parent, child or sibling of the deceased; and
• immediately before his or her death, the deceased must have been providing support to them, or was under a legal obligation to provide support.

A parent generally includes a grandparent and a person who the deceased has demonstrated a settled intention to treat  as a parent/grandparent of his or her family.

A child includes a grandchild, and any person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, any child conceived before and born alive after the parent’s death, and may even include a child posthumously-conceived.

A spouse includes:

• a legally married spouse, or
• either of two persons who were legally married to each other but have since become divorced, or
• a common-law spouse who had lived with the deceased continuously for a period of at least three years, or
• a person with whom the deceased had a relationship of some permanence and they have a child together.

A sibling is a brother or sister of the deceased.

How does the Court decide the support amount?

Under the SLRA, when deciding whether to make an order for support, or the amount and duration of support, a court considers the following 19 factors:

(a) the dependant’s current assets and means;

(b) the assets and means that the dependant is likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the dependant’s age and physical and mental health;

(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;

(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(g) the proximity and duration of the dependant’s relationship with the deceased;

(h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;

(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;

(j) a contribution by the dependant to the realization of the deceased’s career potential;

(k) whether the dependant has a legal obligation to provide support for another person;

(l) the circumstances of the deceased at the time of death;

(m) any agreement between the deceased and the dependant;

(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;

(o) the claims that any other person may have as a dependant;

(p) if the dependant is a child,

(i) the child’s aptitude for and reasonable prospects of obtaining an education, and

(ii) the child’s need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,

(ii) the length of time the spouses cohabited,

(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support,

(vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child,

(viii) the desirability of the spouse remaining at home to care for a child; and

(s) any other legal right of the dependant to support, other than out of public money.

How to file a dependant’s relief claim

To make a dependant’s relief claim a Notice of Application must be filed with the Court. A claim for support may be made based on financial need, or on legal, or moral and ethical obligations, and must be supported with an Affidavit and documented evidence.

When must a dependant’s relief claim be filed?

The application for support of a dependant usually must be filed within six months of the granting of a Certificate of Appointment of an Estate Trustee (probate), or the Appointment of an Estate Trustee Without a Will (letters of administration). There is an exception, however, whereby the SLRA gives the Court discretion to allow a dependant relief application to be made at any time, if there is a portion of the estate that has remained undistributed at the time the application is made.

How is support provided?

If the Court decides that the person is a dependant, has a legitimate need for support, and that the deceased did not provide adequate provisions for support, the Court may order support to be paid by:

• a lump-sum payment or periodic payments, or
• specified property to be transferred or assigned to (or in trust for the benefit of) the dependant, whether absolutely, for life or for a term.

Estate Bonds

Estate bonds protect any party with a legal interest in the estate, including:

• Named or entitled beneficiaries
• Estate creditors
• Minors and the incapacitated.

An estate bond guarantees the Beneficiaries will receive their share of the estate and protects Creditors of the estate. In addition, estate bonds reduce claims and court time, as well as assuring that the executor/trustee will fulfill their duties and obligations. For more information about estate bonds, or to purchase a bond, contact Ai Surety Bonding .

Getting the legal help you need

Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, or for help in filing a capacity claim, you should consult a lawyer.

								
You now have 3 options:
								

									
More answers about Wills, Estates and Powers of Attorney
									
Master List: 2,500 Legal Answers
																													
																		
Government Links